Chiaraluce v. Zoning Board of Appeals of Wareham

Suffolk. Civil actions commenced in the Land Court Department
on July 21 and July 25, 2011.

The
cases were heard by Gordon H. Piper, J.

Richard M. Serkey for Joseph H. Chiaraluce.

Mark
J. Lanza for Denise R. DePedro.

Present:
Hanlon, Sullivan, & Maldonado, JJ.

OPINION

[48
N.E.3d 476] Sullivan, J.

Joseph
H. Chiaraluce, trustee of the Chiaraluce Realty Trust
(trust), appeals from a judgment of the Land Court in a
consolidated action, which determined that the trust was not
entitled to a building permit for its Wareham lot (locus). A
judge of the Land Court concluded that the right to rebuild
the nonconforming residential structure that once occupied
the lot had been abandoned as a matter of law. We affirm.

Background.

We
accept the facts as found by the trial judge, unless they are
clearly erroneous, Colony of Wellfleet, Inc. v.
Harris, 71 Mass.App.Ct. 522, 523, 883 N.E.2d 1235
(2008), and " do not review questions of fact if any
reasonable view of the evidence and the rational inferences
to be drawn therefrom support the judge's

Page 291

findings." Martin v. Simmons Properties, LLC,
467 Mass. 1, 8, 2 N.E.3d 885 (2014). The locus, the subject
of numerous efforts to build, is comprised of 7,012 square
feet in a residential district that has a current minimum lot
size requirement of 30,000 square feet. It has no street
frontage and is accessible from the street over a
twelve-foot-wide right of way. Olaf, Lorraine, and Laurence
Olsen (the Olsens) purchased the locus in 1971 for $16,000,
at which time it was improved with a residential cottage ten
feet in height, twenty feet in length, and thirty feet in
width, with a gross living area of 600 square feet. In August
of 1991, Hurricane Bob damaged the cottage, forcing it off
its cement block foundation and separating the porch from the
cottage. Thereafter, in September, 1991, the Olsens
dismantled and removed the cottage from the locus.

[48
N.E.3d 477] Wareham's zoning board of appeals (board)
granted a " blanket" special permit for
reconstruction of residences damaged by Hurricane Bob.
Although the Olsens obtained such a permit in March of 1992
and in February of 1993 obtained a six-month extension of the
permit, they did not rebuild. Rather, on July 30, 1993, they
sold the locus to the trust for $5,000. The Olsens used the
$70,000 in insurance proceeds they received for the damage to
the cottage to purchase a mobile home elsewhere in Wareham.
Given what the judge found to be a low sale price and the
Olsens' choice to spend their insurance proceeds
elsewhere, the judge found that they intended to abandon the
nonconforming structure on the locus.

At the
time the trust purchased the locus, Chiaraluce and his wife
owned the abutting lot, improved with a single-family
cottage. Although Chiaraluce testified that his initial plan
for the locus was to use it for overflow parking for his
abutting property, " but eventually who knew, you know,
garage, house," the judge found that Chiaraluce intended
to use the locus solely for additional parking for the
abutting lot, and not to build a house. As a reviewing court,
we accept this factual finding of the judge, who saw and
heard the witnesses. See Martin v. Simmons Properties,
LLC, 467 Mass. at 8.

In
addition to Chiaraluce's testimony, additional facts in
the record supported the judge's findings. Chiaraluce
sold the abutting improved lot on August 14, 1998. It was not
until March, 2001, after Chiaraluce had sold his abutting
property, that the trust first sought to rebuild on the
...

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